It seems that my trip to New Zealand to work on my Wellcome Trust contested capacity assessment project (the jazzy new website for which is now live) was in some ways ill-timed as it coincided with a flurry of activity on various fronts of surprising vigour for the summer months.
As we are not due to publish a Mental Capacity Report for another few weeks, I thought that a brief update on some key developments would be in order. We will be amplifying on all of these in due course in the Report.
Legal aid, medical treatment and the role of the courts
In Director of Legal Aid Casework v Briggs  EWCA Civ 1169, the Court of Appeal overturned the decision of Charles J that he could, within the scope of s.21A (and hence non-means-tested legal aid) consider whether life-sustaining treatment should be continued to be provided to a man in an Minimally Conscious State subject to a DOLS authorisation. The Court of Appeal were intensely alive to the consequences of their decision as regards legal aid (see paras 10 and 113-14) but reached their conclusion on the basis of a strict construction of the statute and found that Charles J had, in essence, engaged in an impermissible ruse.
There has been a considerable degree of concern as to the consequence of the decision but for my part, the decision was nowhere near as bad as it could have been, because the Court of Appeal did not narrow the scope of s.21A MCA 2005 and – by extension – DOLS – as much as had been sought by the Legal Aid Agency, which argued that “under Schedule A1, all that is required within the best interests assessment is for the assessors to satisfy themselves that there is in fact a care plan and a needs assessment in place. No further detailed examination or consideration of the contents is […] either required or appropriate.” However, King LJ recognised that:
“93. […]There are many issues which relate to a deprivation of liberty which need appropriately to be considered by the assessor and which may be reflected in recommendations for conditions in the assessor’s report and which may even be determinative of whether a standard authorisation is made.
94. Where a dispute is referred to the court under s.21A, the issue is often in relation to P and the family’s wish for P to go home, set against the assessor’s view that it is in P’s best interests to be placed in a care home and consequently deprived of his or her liberty. Miss Richards has helpfully provided the court with a table of cases where applications have appropriately been made under s.21A; on closer examination, each of them has involved a dispute as to whether P should reside in some form of care home or return to either his home or to live with a family member in the community. Such cases are focused specifically on the issue as to whether P should be detained and are properly brought under s21A. Proper consideration of those cases by the assessor in compliance with the guidance in the DOLS Code, requires far more of an extensive consideration of the relevant circumstances than that which is suggested by Mr Nicholls, namely simply ensuring a care plan and needs assessment is in place without further consideration as to the content.
95. Contact, for example, is an issue capable of going to the heart of whether being detained is in a person’s best interests; it may be that in an ideal world P’s best interests would be served by a deprivation of liberty in the form of her living in a care home properly looked after, where the appropriate medication regime will be adhered to and P will have a proper balanced diet. Desirable as that may be, and such a regime may well provide the optimum care outcome for P, but it may also be the case that unless, regular contact can be facilitated to a particular family member, the distress and confusion caused to P would be such that it would be no longer in her best interests to be detained, and that what might amount to sub optimum physical care would ultimately be preferable to no, or insufficient contact. The weighing up of such options are part of the best interests assessment process in relation to which the professionals who are eligible to be assessors are peculiarly qualified to conduct.”
The Court of Appeal also took it upon itself to set out a number of observations in relation to medical treatment, both as to the application of the concept of deprivation of liberty and also as to the potential need for the involvement of the court. King LJ noted that:
“106. In my view, Ferreira confirms what I myself would regard as an obvious point, namely that the question of deprivation of liberty does not arise where a person who lacks capacity is so unwell that they are at risk of dying if they were anywhere other than in hospital and therefore, by virtue of their physical condition, they are unable to leave the hospital. It may be the case however that as the treatment progresses and P’s physical condition improves, his or her ongoing care becomes a deprivation of liberty and, at that stage, a standard authorisation or court order will be required if the continued retention of P on the ward is not to become unlawful.
107. All parties agree that circumstances will continue to arise where a person requiring treatment will meet Lady Hale’s ‘acid test’. For that reason the court decided to hear the case, notwithstanding that this case itself is now academic, not only because Mr Briggs has now died, but also because in this court’s view no standard authorisation was necessary, and his case was therefore outside the scope of s.21A in any event.
108. The proper approach to a case where the central issue is medical treatment (serious or otherwise) following Ferreira is therefore as follows:
i) If the medical treatment proposed is not in dispute, then, regardless of whether it involves the withdrawal of treatment from a person who is minimally conscious or in a persistent vegetative state, it is a decision as to what treatment is in P’s best interests and can be taken by the treating doctors who then have immunity pursuant to section 5 MCA
ii) If there is a dispute in relation to medical treatment of an incapacitated person, and, specifically, where there is a doubt as to whether CANH should be withdrawn, then the matter should be referred to the court for a personal welfare determination under sections 15-17 MCA.
iii) Where, as a consequence of receiving life saving treatment, P is unable to leave hospital, that is not a deprivation of liberty which falls foul of Article 5(1). A standard authorisation is not therefore required and any application in relation to treatment will properly be made under s.16 MCA.
iv) If, as a consequence of ensuring that P receives the treatment that is in his or her best interests, P will become subjected to a deprivation of liberty of a type that falls within Article 5(1), then there must be authorisation for that deprivation of liberty:
a) If already in hospital or in care. under Schedule A1 (or S4A(5)): or
b) Pursuant to a court order under section 4A(3) MCA.
v) The Sch. A1 decision will be made pursuant to para. 16 on the basis that the proposed deprivation of liberty is in P’s best interests, necessary and proportionate; conditions of the type envisaged by the DOLS Code of Practice can be recommended if necessary.
vi) If there is a disagreement as to whether there should be a standard authorisation, or in relation to the conditions attached to such an authorisation, then the matter can be brought to by way of an application under s.21A to determine any question relating to the authorisation and to make any appropriate order varying or terminating the authorisation. Clinical issues in relation to treatment will remain in the hands of the treating physicians.”
The observations at 108(i), whilst strictly obiter, are of considerable importance in light of the current debates as to whether, and how, Practice Direction 9E to the Court of Protection Rules should be amended – and whether, and, if so, on what basis, medical treatment decisions need to come to court. This – strong – Court of Appeal (including both the President of the Queen’s Bench Division and the new Lord Chief Justice) has clearly taken the view that it is only in the case of dispute that a medical treatment decision ever need come to court, (see further in this regard, inter alia, my article on s.5 and the articles in the July 2017 issue of the Journal of Medical Ethics).
Best interests, alcohol and the fine line
In a thoughtful decision (DM v Y City Council  EWCOP 13), Bodey J grappled with the question of whether DM, who was currently an abstinent alcoholic, should continue to reside and be cared for at a care home home which forbids alcohol, or whether he should be moved, as he wished to be, to a home which did allow the consumption of alcohol. Against his initial instincts, Bodey J ultimately concluded that “putting myself in DM’s shoes in trying to reach a decision which is holistically in his overall best interests, I now find myself satisfied that it would be best for him to remain where he is at the Home.” This, he considered, would be the least restrictive option for him consistently with his best interests and that, although by moving he would be fulfilling his stated wish, he would be losing much else of real value to his quality of life.
Whatever one’s views of this decision, comparison of the reasoning in this case with that of the Court of Appeal in the RB case demonstrates just how far we have come since 2014 as regards engagement with the principle that constructing a best interests decision starts with the individual.
Paying the price for a failure to support
In the very important but distinctly misreported case of CH  EWCOP 12, Sir Mark Hedley returned to the Court of Protection fray with a very significant endorsement of a consent order for substantial (£10,000) damages to be paid to a man with learning disabilities, CH, who had sought fertility treatment with his wife. In the context of that request, CH was assessed by a psychologist as lacking consent to sexual relationships. CH’s wife, WH, was advised in a letter in March 2015 that she had to abstain from sexual intercourse with CH as that would, given CH’s lack of capacity to consent, comprise a serious criminal offence; WH was also given to understand by the local authority that should she fail to comply, safeguarding measures would be taken which would require the removal of CH (or herself) from their home. WH moved into a separate bedroom. CH could not of course understand why she did that. However in order not ‘to lead him on’ she significantly reduced any physical expressions of affection. As Sir Mark Hedley noted, “[t]he impact of all this on CH is not difficult to imagine.” Importantly, the consultant psychologist had made clear that CH needed a course of sex education to assist him to achieve the necessary capacity. As Sir Mark noted “[t]hat advice was of course in line with the principle set out in Section 1(3) of the Mental Capacity Act 2005 (MCA 2005) which provides – “A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.” However, “[f]or reasons that have never been satisfactorily explained, the Local Authority failed to implement that advice despite requests and protracted correspondence.” In the end, it required proceedings initiated by CH’s sister to bring about both that education and, in due course, a determination that CH had the requisite capacity.
An HRA claim was then brought on the basis that the local authority breached CH’s rights under Article 8 ECHR. As Sir Mark noted:
“12. However, Article 8 is a qualified right and it is important to note where it is alleged the breaches occurred. There can be no criticism of the fact that there was an assessment in late 2014. Given the outcome, the letter of the 27th March 2015 was inevitable having regard to the provisions of the criminal law. The sex education was a response wholly consistent with Section 1(3) of the MCA 2005. Whilst there may have been legitimate debate about the necessity for the second course [of sex education, at the suggestion of the jointly instructed expert] in early 2017, it would not be actionable given the advice tendered to the court and the court’s acceptance of it. It follows that some incursions on the conjugal relations of CH and WH would have been justifiable by Article 8(2).
13. The gravamen of the claim is the delay in implementing the advised programme of education: that is to say the period between 27th March 2015, when conjugal relations were required to cease, (although the lack of capacity had been established in January 2015) and the start of the first sexual education programme on 27th June 2016. Given that the Local Authority would have needed some time to set up the programme, the actionable delay over all is one of not less than 12 months. The Local Authority has not sought to contest that conclusion nor that they are apparently in breach of Section 6(1) of the HRA 1998.
Sir Mark Hedley made the important observation (rather lost in the press coverage) that
“15. Before turning to the proposed settlement itself one further observation may be ventured. This case is unusual; indeed thus far it may be unique in being applied to a settled, monogamous and exclusive married relationship. In those rare cases where the courts have made declarations of incapacity to consent to sexual relations, they have generally been cases of restraining sexual disinhibition to protect from abuse or the serious likelihood of abuse. However, logically the question of capacity must apply also to married relations and the criminal law makes no distinction between settled relations and sexual disinhibition or indeed between sexual relations within or outside marriage. Society’s entirely proper concern to protect those who are particularly vulnerable may lead to surprising, perhaps even unforeseen consequences. Such, however, may be the price of protection for all.”
The offer of £10,000 in damages, together with a public apology, was ultimately endorsed by Sir Mark Hedley as being in CH’s best interests. He emphasised, however, “[m]any would think that no couple should have had to undergo this highly intrusive move upon their personal privacy yet such move was in its essentials entirely lawful and properly motivated. As I have said, perhaps it is part of the inevitable price that must be paid to have a regime of effective safeguarding.”
Litigation friends in tribunals
In two important cases, confirmation has been given that the Employment Tribunal has the power to appoint a litigation friend (Jhuti  UKEAT 0062_17_3107), as does the Asylum and Immigration Tribunal AM (Afghanistan) v SSHD  EWCA Civ 1123). The ramifications of both of these decisions will be considerable, and we will be keeping a close eye on them in the Mental Capacity Report.
Powers of attorney a no-go?
Readers will be aware of the furore caused by former Senior Judge Lush’s comments on powers of attorney. We will have full coverage of this – and also a Scottish perspective on the rather different picture north of the Border – in the next issue of the Report, but in the interim, I would commend this article by (inter alia) Tor on the Transparency Project website which places those comments in some much needed context.
Bournewood – the play
Finally, a plug for a play about the Bournewood case, featuring Mr E (HL’s carer) to be broadcast on Radio 4 on 29 August at 2:15, to be followed by a discussion of its impact. Following on the powerful play about Mr C (repeated today, 22 August and available on the iPlayer), it promises to be essential listening for anyone remotely concerned with deprivation of liberty – as everyone should be.